Kirtland R. v

Sentencing for supplying articles for use in fraud requires the court to consider the applicable guideline range before mitigation and before selecting the form of sentence. A fine must be fixed under Criminal Justice Act 2003, section 164, following inquiry into the offender’s financial circumstances and by reference to the offence’s seriousness.

A fine must not be calculated simply to extract a multiple of the offender’s gain. Where the purpose is to recover criminal benefit, the proper route is confiscation under the Proceeds of Crime Act 2002, which must be addressed before a fine. On a prosecution appeal against sentence, the statutory prohibition on making the offender’s position more severe may confine the appellate court’s corrective powers.

The appellant was convicted in the Crown Court at Blackfriars of four offences of supplying forged first-class rail travel passes for use in fraud, contrary to section 7(1) of the Fraud Act 2006. He received fines of £25,000 on each count, totalling £100,000, with terms of imprisonment in default.

He appealed against sentence with leave. He submitted that the total fine was manifestly excessive, having regard to the limited nature of his role, the absence of discernible loss, his mitigation, his income and necessary outgoings, and totality. The central issue was the lawful and proportionate financial sentence for the offending.

1. Appeal allowed. The sentencing exercise was seriously deficient. Although the judge had begun by considering seriousness, he should then have identified the appropriate guideline range before considering mitigation and deciding whether custody, a community order or a fine was appropriate.

2. The relevant fraud guideline placed this offending, involving the supply of forged travel passes, probably in the less extensive and less skilfully planned category, although somewhat above its starting point. The sentencing judge had not considered the guideline at all.

3. If imposing a fine, the judge was required by section 164 of the Criminal Justice Act 2003 to inquire into the appellant’s financial circumstances. The fine had to reflect the seriousness of the offence while taking account of those circumstances. No such inquiry had been made.

4. Recovery of the appellant’s gain should have been pursued through confiscation under section 6 of the Proceeds of Crime Act 2002, even if the prosecution had not requested it. Under section 13, confiscation had to be considered before a fine. The judge instead fixed the fines by reference to the gain, apparently to require payment of ten times the net gain. That approach was wrong in principle.

5. By section 11(3) of the Criminal Appeal Act 1968, the court could not deal with the appellant more severely than the Crown Court could have done. It was therefore confined to reconsidering the fines rather than substituting a community or custodial sentence, or investigating confiscation.

6. The appellant had sufficient capital and affluence to pay a substantial fine. The proper sentence was a fine of £5,000 on each count, totalling £20,000, payable within 12 months. The court imposed three months’ imprisonment in default on each count, to run consecutively.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted fines totalling £20,000: [2012] EWCA Crim 2127.

• Crown Court at Blackfriars: On 30 March 2012, convicted the appellant of four offences and imposed fines totalling £100,000.